The Role of Fraudulent Transfer Rules in Corporate Insolvency

Abstract

"The article is based on a lecture given by the author in Paris on the 12. October 2007 in the context of a Symposium devoted to corporate insolvency law. It deals with the role of fraudulent transfer rules in company law. The research is carried out on the field of comparative and European law. It therefore starts from a stipulative definition of [UTF-8?]“fraudulent transfer [UTF-8?]rules†which excludes preferences (even if they belong to the matter, in some legal systems) but includes the regulations aimed at subordinating [UTF-8?]shareholders’ loans. The paper demonstrates that the different [UTF-8?]“fraudulent transfer [UTF-8?]rules†adopted by principal EU Member States converge in many points. It also demonstrates that: 1) such a regulation is aimed at balancing the ever increasing tendency to deregulate company law and eliminate specific duties to raise and maintain the legal capital and 2) this set of rules ought become more objective and [UTF-8?]– in line with the evolution of the fraud [UTF-8?]– should adopt as requisite for the action the demonstration that the transfer is [UTF-8?]“unreasonable†, as it was laid down by article 2501-sexies of the Italian Civil code for a specific case of leveraged buy out."